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Palm Beach Notice to Appear care of Portfolio Recovery Associates


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The big things that stand out to me is PRA has made little to no effort to contact me by phone or snail mail. The notice to appear has a hand written date of early February yet it was dropped off at the door (not handed to anyone) weeks later and dangerously close to appearance date. I'm not sure if the process service requirements of my state were met or what I can do since it would be my word against the server.. No one signed, no person received it, it was just left at the door yet. When researching the case the agent reported some fictitious female name as who he left it with. The sole inhabitant is disabled and unable to answer the door.

Weird stuff about the accused debt is that the card was not used so the last payment date pre-dates the purchase. The only other thing that stands out to me is in the counts, PRA states CITIBANK and I the defendant agreed to the resulting balance for the account.. Which I absolutely did not. I'm assuming they can make that statement by default to non-payment or a lack of correspondence on my part at some point? In any event there has been almost no attempt by anyone to contact me regarding this alleged debt.

I've been doing research on the whole thing and it's amazing how little time they gave me to prepare for this.. Looking at the case history, they've been doing all this since last year. Only now, < 3wks from the pretrial mediation date have I received my first notice of these proceedings and this case against me.

I'm not sure what to bring.. Can I motion for things on the spot? Am I simply asking for more time to prepare? What can I actually do besides potentially mediate OR request a trial date be set.

Anyhow, thank you to anyone who contributes any time to this matter. I've been out of work for almost five years now and taking care of two sick people for the better part of three.

Quote

 

1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates LLC,

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Hayt, Hayt, & Landau

3. How much are you being sued for?

Roughly $1,300.00

4. Who is the original creditor? (if not the Plaintiff)

CITIBANK, N.A. Home Depot STORE Card

5. How do you know you are being sued? (You were served, right?)

Served

6. How were you served? (Mail, In person, Notice on door)

Notice on door/ground

7. Was the service legal as required by your state?

No, it was not left with a person older then 15yrs of age. The documents were left at the door, no one notified.

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

Florida, Palm Beach

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Approximate date of 4/16/2011, however approximate purchase was 6/12/2012. The card hadn't been used in a very long time so the last payment pre-dates the actual purchase. Florida is time of breach so we're probably within the SOL but I'd like to force them to prove it.

11. What is the SOL on the debt? To find out:

4 Years on STORE CREDIT

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Summons served, pre-trial conference/mediation date coming soon.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

NA, this is a notice to appear for a pre-trial conference/mediation. I was given very little time to prepare and or respond.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Last account statement with a new balance including the first late payment penalty.

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

 

 

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Can you attach the complaint (with personal info blacked out)? Is there any notice of assignment? That's a Florida requirement. https://www.flsenate.gov/Laws/Statutes/2012/559.715

You may want to pull up your cardmember agreement to see about private contractual arbitration. If you don't have it on you, you can find them at http://www.consumerfinance.gov/credit-cards/agreements/

If you go to court, you may be able to qualify for a fee waiver. Report the improper service to the Fl Atty General office. You can also file a complaint at CFPB about Portfolio, the way you were served and other detail you feel is relevant. They know Portfolio's games pretty well.

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2 hours ago, nexus said:

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

Since it sounds like you aren't agreeing with their amounts and other info pull up your credit report and dispute. Free at https://www.annualcreditreport.com/

Remember that you disputed this as well later on since these bozos will try to get you on "account stated"- they say you made the charges, received statements, didn't contact them about any discrepancies, therefore you must agree, etc. Not really since what you see is what Portfolio is giving you and they weren't ever a part of this until supposedly buying it long after you made any alleged transactions.

 

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Is the name he left it with the same name as the disabled occupant?  This sounds like sewer service to me.  PRA is fairly easy to fight.  They never file their non-resident cost bond unless you notice them, too.  At pre-trial everything will be geared towards getting you to admit you had the card and owe some sort of money.  That way they don't have to prove their case at all and the only thing to work out is how much you will pay them in payments or lump sum.  PRA loves small claims court because of this.  I'd file an answer with affirmative defenses, dispute the debt, demand a jury trial and ask to do discovery.  Might want to take a depo of the process server too, or just plan to subpoena them as a witness.

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6 minutes ago, LawKitty said:

Is the name he left it with the same name as the disabled occupant?  This sounds like sewer service to me.  PRA is fairly easy to fight.  They never file their non-resident cost bond unless you notice them, too.  At pre-trial everything will be geared towards getting you to admit you had the card and owe some sort of money.  That way they don't have to prove their case at all and the only thing to work out is how much you will pay them in payments or lump sum.  PRA loves small claims court because of this.  I'd file an answer with affirmative defenses, dispute the debt, demand a jury trial and ask to do discovery.  Might want to take a depo of the process server too, or just plan to subpoena them as a witness.

That non-resident bond thing is pretty good. Florida also has that statute where you could have an attorney represent you and the Plaintiff pays for it.

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0057/Sections/0057.011.html

57.011 Costs; security by nonresidents.When a nonresident plaintiff begins an action or when a plaintiff after beginning an action removes himself or herself or his or her effects from the state, he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought. On failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney.

 

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0057/Sections/0057.105.html

(7) If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

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26 minutes ago, CCRP626 said:

Can you attach the complaint (with personal info blacked out)? Is there any notice of assignment? That's a Florida requirement. https://www.flsenate.gov/Laws/Statutes/2012/559.715

You may want to pull up your cardmember agreement to see about private contractual arbitration. If you don't have it on you, you can find them at http://www.consumerfinance.gov/credit-cards/agreements/

If you go to court, you may be able to qualify for a fee waiver. Report the improper service to the Fl Atty General office. You can also file a complaint at CFPB about Portfolio, the way you were served and other detail you feel is relevant. They know Portfolio's games pretty well.

Here is the complaint I received with redacted personal info (complaint link).

I will look in to that waiver and I will absolutely file complaints regarding this matter. Thank you for taking the time.

14 minutes ago, CCRP626 said:

Since it sounds like you aren't agreeing with their amounts and other info pull up your credit report and dispute. Free at https://www.annualcreditreport.com/

Remember that you disputed this as well later on since these bozos will try to get you on "account stated"- they say you made the charges, received statements, didn't contact them about any discrepancies, therefore you must agree, etc. Not really since what you see is what Portfolio is giving you and they weren't ever a part of this until supposedly buying it long after you made any alleged transactions.

 

Thanks noted, I've adjusted my response.

5 minutes ago, LawKitty said:

Is the name he left it with the same name as the disabled occupant?  This sounds like sewer service to me.  PRA is fairly easy to fight.  They never file their non-resident cost bond unless you notice them, too.  At pre-trial everything will be geared towards getting you to admit you had the card and owe some sort of money.  That way they don't have to prove their case at all and the only thing to work out is how much you will pay them in payments or lump sum.  PRA loves small claims court because of this.  I'd file an answer with affirmative defenses, dispute the debt, demand a jury trial and ask to do discovery.  Might want to take a depo of the process server too, or just plan to subpoena them as a witness.

No it is not, no one by the reported name has ever lived at the residence. When reviewing the case history, service returned (numbered) docket text reports the sub was serv'd to (fictitious name roommate/ co-resident). Further, it reports the effective date on a weekday but the document has a weekend date hand written on it.. As nobody was served in person it sat until the following Monday until someone noticed it on the floor at the door.

How long do I have to file an answer in this situation? I was given very little time to address it.

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13 minutes ago, CCRP626 said:

Look into your small claims rules. http://www.floridabar.org/TFB/TFBResources.nsf/0/5E3D51AF15EE8DCD85256B29004BFA62/$FILE/Small%20Claims.pdf

7.090 you have to appear in person but written defenses not needed at that time. Bring that sewer service with you and let the judge know about it.

Thanks for addressing that and including a link!

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You'll want to deny the allegation that there was an agreement reached as to the amount of the debt.

"In an action for an account stated, failure to respond to a demand, without more, would not establish liability." Page Avjet Corp. v. Cosgrove Aircraft Serv., Inc., 546 So. 2d 16 (Fla. Dist. Ct. App. 1989).

There is a reason PRA is filing lawsuits in Florida that don't purport to sue on the original contract.

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Seems like this phrase from the FDCPA would apply to anything non-court related sent from the JDB as a reason you didn't respond or object.

The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

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I would deny the debt.  Make PRA prove their case.  They usually never have the documents to prove that it's your debt.  They rely on default judgments, stipulations, and summary judgments to get easy wins.  If they get a judgment, they will garnish any  bank account with your name on it, even joint accounts so it's most certainly worth it to fight them.

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2 hours ago, nascar said:

You'll want to deny the allegation that there was an agreement reached as to the amount of the debt.

"In an action for an account stated, failure to respond to a demand, without more, would not establish liability." Page Avjet Corp. v. Cosgrove Aircraft Serv., Inc., 546 So. 2d 16 (Fla. Dist. Ct. App. 1989).

There is a reason PRA is filing lawsuits in Florida that don't purport to sue on the original contract.

Absolutely, thank you for the quote and citation. I'll be adding something to this effect and the citation to my answer.

2 hours ago, CCRP626 said:

Seems like this phrase from the FDCPA would apply to anything non-court related sent from the JDB as a reason you didn't respond or object.

The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

Thanks for that tip, I plan on reading the FDCPA further tonight.

1 hour ago, LawKitty said:

I would deny the debt.  Make PRA prove their case.  They usually never have the documents to prove that it's your debt.  They rely on default judgments, stipulations, and summary judgments to get easy wins.  If they get a judgment, they will garnish any  bank account with your name on it, even joint accounts so it's most certainly worth it to fight them.

Ok, thank you for the advice. I'll be denying the debt in my answer. As far as documents go, a single statement was included with the paperwork. It seems as if they specifically chose a statement that has already tacked on some late payment fees by looking at the details.

I won't give them an easy win and allow a default or summary judgement. It's hard for me to get to the courthouse but I will make sure I get there. As for stipulations, I'm currently reviewing the original agreement. What sort of documentation do they need to meet their burden?

 

At the moment I'm researching template/forms for my correspondence. I'm also looking in to appropriate affirmative defenses. Per SC rules I have 20 days from the reported service date to answer. The pre-trial/mediation date is before this period ends so I'll shortly file an answer online as well as bring copies for everyone to the mediation.

 

@CCRP626 The card member agreement goes beyond those archives (account says it was opened before 2011). The oldest one I could find in the archive included this regarding arbitration: 

hdcc_arbitration.png

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Any original creditor statement they've included wouldn't meet the evidence rules since they're not the original creditor. Did they include an affidavit? Challenge their standing (remember no notification of assignment as well), chain of title, documents don't meet business records exception to hearsay rule.

90.803 (6): http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.803.html

90.902 (11): http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.902.html

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45 minutes ago, nexus said:

The card member agreement goes beyond those archives (account says it was opened before 2011). The oldest one I could find in the archive included this regarding arbitration: 

any cardmember agreement while the account was open up to the time of default is fine. If an older one where a subsequent one was issued later, the arbitration clause needs a survivability clause. You'll want to look at the whole arbitration section to see who pays what. If JAMS is mentioned, that's the preferred one and you'd be limited to $250 max to get this started. If you let them know you'd qualify for fee waiver at court, they may waive the fees since the idea is they don't want you paying more than court fees.

Be careful if you decide to arbitrate since participating in litigation like discovery will waive your right to arbitration. Note, JAMS is private contractual arbitration in case your court has some court mandated mediation or arbitration. Where private arbitration works is it's so expensive for the Plaintiff to do anything (over $1,000 to start with and they have to pay the bill in advance). They spend probably 5 cents on the dollar or less for your alleged $1,300 debt, so arbitration doesn't work for them.

If @LawKitty thinks this is a slam dunk in court though, I'd really listen to her.

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I think it'd be more likely to be a slam dunk if the OP had an attorney.  Pro se, it's possible and there are plenty on this site that have won without an attorney.  Small claims usually has a court-ordered mediation.  Most of the time it's a waste of time because it's all about what payments can you afford to make.  My settlement offer is usually the same.  I want the case dismissed with prejudice, attorney fees, no 1099 and it taken off the credit report.  Generally they will cave and give me at least 3 out of 4.  

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2 hours ago, CCRP626 said:

Any original creditor statement they've included wouldn't meet the evidence rules since they're not the original creditor. Did they include an affidavit? Challenge their standing (remember no notification of assignment as well), chain of title, documents don't meet business records exception to hearsay rule.

90.803 (6): http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.803.html

90.902 (11): http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.902.html

No they did not include an affidavit. The package included the notice to appear for pre-trial conference/mediation, a complaint for damages, a single alleged statement, and some internal fact sheet with case specific details.

2 hours ago, CCRP626 said:

any statement while the account was open up to the time of default is fine. If an older one, the arbitration clause needs a survivability clause. You'll want to look at the whole arbitration section to see who pays what. If JAMS is mentioned, that's the preferred one and you'd be limited to $250 max to get this started. If you let them know you'd qualify for fee waiver at court, they may waive the fees since the idea is they don't want you paying more than court fees.

Be careful if you decide to arbitrate since participating in litigation like discovery will waive your right to arbitration. Note, JAMS is private contractual arbitration in case your court has some court mandated mediation or arbitration they do. Where private arbitration works is it's so expensive for the Plaintiff to do anything (over $1,000 to start with and they have to pay the bill in advance). They spend probably 5 cents on the dollar or less for your alleged $1,300 debt, so arbitration doesn't work for them.

If @LawKitty thinks this is a slam dunk in court though, I'd really listen to her.

Here is the initiation, payment, and survivability clause. JAMS is mentioned by name and I would most definitely qualify for civil indigent status. Is it enough to verbally notify of my status at the pre-trial conference/mediation or should I have a statement AND/OR the application filled out?

hdcc_arbitration2.png

The alleged debt is less then $1,300, I've read I should not to post exact figures or dates online while seeking advice.

2 hours ago, LawKitty said:

I think it'd be more likely to be a slam dunk if the OP had an attorney.  Pro se, it's possible and there are plenty on this site that have won without an attorney.  Small claims usually has a court-ordered mediation.  Most of the time it's a waste of time because it's all about what payments can you afford to make.  My settlement offer is usually the same.  I want the case dismissed with prejudice, attorney fees, no 1099 and it taken off the credit report.  Generally they will cave and give me at least 3 out of 4.  

Can you elaborate more on a slam dunk with an attorney and if I can hire someone to represent me after this pre-trial hearing? Considering my limited means. the alleged total being less then $1,500.00, and the amazing support on this forum. I ask because when I called around I was being quoted hundreds just to draft and file an answer to the complaint not including appearances such as this pre-trial conference/mediation.

Could you also please explain the order of things or point me in a direction I can familiarize myself with them? I'm still reading, but not clear on the order of the proceedings or my desired order of execution.

 

Thank you everyone for your assistance, I've been working on this all day, reading, and learning everything I can.

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@nexus that agreement would work if you go for private contractual arbitration. Your county courthouse (maybe their website) should have the detail on fee waivers if you go the court route.

JAMS consumer rules here: With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration.

You'd also want to use the agreement clause about the Plaintiff paying your fees when you contact JAMS as well as file a motion to dismiss or in the alternative stay proceedings and compel arbitration.

http://www.jamsadr.com/rules-consumer-minimum-standards/

http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf

also get familiar with Florida arbitration rules- http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0600-0699/0682/0682.html

682.03 Proceedings to compel and to stay arbitration. You'll also notice the arbitration section in the cardmember agreement references the FAA- Federal Arbitration Act. You'll find examples with case law to put that in your motion on this board as well.

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@nexus

@LawKitty has been very successful in winning cases filed by PRA.  Sometimes she gets dismissals in a matter of hours!   No lawyer can guarantee a win, of course, but her batting average is quite high. I will  paste the response of one member who got a dismissal within a few hours of her filing her pleadings in court.

 I know her fees are very reasonable and she takes payments.  And sometimes, she gets her attorneys' fees paid by the JDB when she wins.   If you want to discuss your case with her, just click on her name and send her a PM.  There is no obligation.  She is a superb lawyer and very nice person.

This from the member @nnye

I originally posted on this site for help in responding to a summons from PRA (regarding a 6k Citibank debt), however living in FL and not knowing the law i was excited to retain @LawKitty . She has been so thorough in explaining everything and being realistic about the possible outcomes of the suit. She allowed me to set up a payment plan!! I made my first payment on saturday, and she got to work on tuesday (monday being a holiday)! Tuesday afternoon she sent me an email with all the info she had submitted to the court electronically. Within HOURS, pra emailed her with a mutual decision. PRA dismissed with prejudice, agreed i would not receive a 1099, the tradeline would be removed from the cra's, and they would not sell the debt or ever attempt to collect on it again!!!!! @LawKitty got me the best possible outcome in less than one day!!! I strongly recommend anyone in FL being sued by the junk debt buyers reach out to her. I honestly thought this process would take months, and that absolutely was not the case. Thank you guys so much for all the help and directing me to @LawKitty.

 

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Stay proceedings (more time to prepare or seek council).. They had months, I got tens of days. Is this even possible?
or
Stay proceedings and compel JAMS comprehensive arbitration utilizing a fee waiver.and compel JAMS comprehensive arbitration utilizing a fee waiver.
or
Answer dispute, deny, affirm defenses, demand trial by jury, and request discovery.

Since I'm not required to have any written document at this meeting, can I simply verbally request the aforementioned option of choice?

14 hours ago, debtzapper said:s

@LawKitty has been very successful in winning cases filed by PRA.  Sometimes she gets dismissals in a matter of hours!   No lawyer can guarantee a win, of course, but her batting average is quite high. I will  paste the response of one member who got a dismissal within a few hours of her filing her pleadings in court.

 I know her fees are very reasonable and she takes payments.  And sometimes, she gets her attorneys' fees paid by the JDB when she wins.   If you want to discuss your case with her, just click on her name and send her a PM.  There is no obligation.  She is a superb lawyer and very nice person.

Thanks for taking the time to share your opinion and make such a helpful post!

I'll keep this thread updated with my progress moving forward. The hardest part has been finding forms and making sure my document format is correct/valid.

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